| Kan. | Jan 15, 1884
The opinion of the court was delivered by
The plaintiff and defendant claim title from one James A. Craighead, the patentee of the governmental subdivision of land known and described as the northwest fractional quarter of section 2, township 5, range 18, in Atchison county. This subdivision of land contains 164 and acres, by government survey. The plaintiff claims title to the north 84 andacres of land, as returned by the government survey. The defendant claims the south 84 and acres. There is a lap of 4 and acres, which is the land in controversy.
If the case turned wholly upon the construction of the deeds executed to the parties under whom the plaintiff and defendant 'claim, we would be compelled, to hold that Craig-head, by his deed to Aaron M. Weddle, conveyed 80 acres only; and therefore that the plaintiff is entitled to the 4 and acres described in his petition. The deed from Craig-head to Weddle, executed November 12,1858, described the land conveyed thereby, as follows: “The south half of the northwest quarter (J), section two (2), township five (5), range eighteen (18), to contain 84 and y2^ acres, be the same more or less.” The foundation of the plaintiff’s claim of title is a tax deed executed on June- 3, 1876, by the county clerk of Atchison county, Kansas, to F. Neerman, on a sale
The authorities agree that if the statement of quantity in a conveyance be matter of description only, the vendor,' in the absence of fraud, is not bound to' make good the deficiency, and the vendee is not required to surrender any excess. It is also the rule that when the quantity of land is mentioned in a deed as part of the description, it will be rejected, if it be inconsistent with the actual area of the premises as ascertained by known monuments or other certain description, when the tract is definitely described and limited. Thus, in Iowa, a grantor deeded to a grantee “the southwest quarter of the northwest quarter of section 30, in township 89 north, of range 10 west, in Buchanan county,”' and recited in the deed, “being 40 acres.” The tract conveyed, being on the western boundary of the township, was fractional, and actually contained 44 acres. It was held in that case that the deed describing the land by its congressional subdivision, passed title to the whole tract — the 44 acres. In other words, the number of acres mentioned in the deed did not control or limit the description. (Ufford v. Wilkins, 33 Iowa 110" court="Iowa" date_filed="1871-12-18" href="https://app.midpage.ai/document/ufford-v-wilkins-7095086?utm_source=webapp" opinion_id="7095086">33 Ia. 110; Powell v. Clark, 5 Mass. 355" court="Mass." date_filed="1809-09-15" href="https://app.midpage.ai/document/powell-v-clark-6403411?utm_source=webapp" opinion_id="6403411">5 Mass. 355; Mann v. Pearson, 2 Johns. 37" court="N.Y. Sup. Ct." date_filed="1806-11-15" href="https://app.midpage.ai/document/mann-v-pearson-5472010?utm_source=webapp" opinion_id="5472010">2 Johns. 37; Snow v. Chapman, 1 Root, 528" court="Conn." date_filed="1793-02-15" href="https://app.midpage.ai/document/snow-v-chapman-6614179?utm_source=webapp" opinion_id="6614179">1 Root, 528; Wright v. Wright, 34 Ala. 194" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/wright-v-wright-6506490?utm_source=webapp" opinion_id="6506490">34 Ala. 194.)
Washburn says:
“Sometimes a certain number of acres or quantity of land in the granted premises is intended to be. guaranteed or assured to the grantee, and words to that effect have been held to ■ amount to a covenant. The question in the numerous cases which have arisen, has been whether the reference to*122 quantity is a part of the description of what is intended to be granted, or intended as an assurance of the quantity mentioned. It may be stated generally, that where the number of acres is referred to as an estimated quantity, or coupled with the clause of 'more or less/ or is clearly a matter of description, it is not a covenant. So where the quantity is mentioned, in addition to the boundaries in the description of the estate, the quantity yields to the boundaries if they do not coincide.” (3 Real Property, 3d ed., § 36a, 417.)
Under the authorities, we must therefore hold that the words in the deed of Craighead to Weddle, “to contain 84 and acres, be the same more or less,” are simply descriptive, and the deed describing the land by its congressional subdivision merely passed title to Weddle of the south half of the northwest quarter of said section two, notwithstanding it was recited in the deed as “ 84 and ^¡- acres, be the same more or less.”
The court, in its conclusion of law, decided, however, that Weddle obtained an,equitable title to the 4 and acres of land in controversy, and this conclusion we think is not erroneous. Weddle paid for the 4 and -j-2^ acres of land, and when Craighead executed his conveyance to him, of November 12, 1858, it was his intention to embrace therein the said 4 and acres. The parties understood that by describing the land in the deed as 84 and t2t6q- acres, the conveyance transferred the title of all of said land now claimed by the defendant. They thought at the time that the quantity recited in the deed was of the essence of the contract. The deed to Weddle was the prior conveyance; the 4 and acres of land were actually paid for at the date of such conveyance; possession was taken under the purchase and deed; and it does not appear from any finding that the plaintiff, or any prior grantor of his, ever had possession of said 4 and T2T6T acres, or ever claimed any possession before the institution of this action. The failure of the deed to embrace the said 4 and -j-2^- acres cannot defeat the claim of the defendant, as he purchased all the interest formerly owned by Aaron M. Weddle. As the latter was the equitable owner thereof, the defendant is likewise such owner.-
The judgment of the district 00111!; must therefore be affirmed.